William Roubos v. Hon. Leslie miller/tucson

SUPREME COURT OF ARIZONA
En Banc

WILLIAM WAYNE ROUBOS, DERRICK ) Arizona Supreme Court
STEPHEN DeNOMME and KTTL ) No. CV-06-0181-PR
ENTERPRISES-PACIFIC BEACH CLUB, )
INC., an Arizona corporation, dba ) Court of Appeals
DV8 Nightclub, ) Division Two
) No. 2 CA-SA 05-0080
Petitioners, )
) Pima County
v. ) Superior Court
) No. C20052396
HON. LESLIE MILLER, JUDGE OF THE )
SUPERIOR COURT OF THE STATE OF )
ARIZONA, in and for the County )
of Pima, ) O P I N I O N
)
Respondent Judge, )
)
CITY OF TUCSON, a municipal )
corporation, )
)
Real Party in Interest. )
__________________________________)

Order from Tucson City Court
The Honorable Antonio F. Riojas, Jr., Magistrate

REVERSED AND REMANDED
________________________________________________________________

Appeal from the Superior Court in Pima County
The Honorable Leslie Miller, Judge

REVERSED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
213 Ariz. 36, 138 P.3d 735 (2006)

AFFIRMED
________________________________________________________________

MUNGER CHADWICK, P.L.C. Tucson
By John F. Munger
Laura P. Chiasson
Attorneys for William Wayne Roubos, Derrick Stephen DeNomme,
and KTTL Enterprises-Pacific Beach Club, Inc.,
dba DV8 Nightclub

MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson
By William F. Mills, Assistant City Attorney
Dennis P. McLaughlin, Assistant City Attorney
Attorneys for City of Tucson

________________________________________________________________

B E R C H, Vice Chief Justice

¶1 This case requires us to decide whether a party that

prevails in a civil infraction proceeding brought by a city may

recover attorneys’ fees under Arizona Revised Statutes

(“A.R.S.”) section 12-348 (2003). We hold that it may.

I. FACTS AND PROCEDURAL BACKGROUND

¶2 In 2004, the City of Tucson twice cited Defendants

William Roubos, Derrick DeNomme, and KTTL Enterprises-Pacific

Beach Club, Inc., for violating Tucson City Code (“TCC”) § 16-32

by allowing unruly gatherings at the DV8 Nightclub. Defendants

were found not responsible after a civil infraction hearing in

Tucson City Court. The magistrate nonetheless denied their

request for attorneys’ fees, holding that they were not entitled

to such fees because the proceeding was not a “civil action.”

¶3 Defendants appealed the denial of fees to the superior

court, which affirmed the city court’s ruling. The court of

appeals reversed, holding that Defendants were entitled to an

- 2 -

award of fees because they prevailed in a civil action brought

against them by the City. Roubos v. Miller, 213 Ariz. 36, 40,

¶ 14, 138 P.3d 735, 739 (App. 2006). We granted the City’s

petition for review because it raises an issue of statewide

importance that affects cities and towns. We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution

and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶4 The statute under which Defendants sought attorneys’

fees requires an award of fees to a party that prevails in a

civil action brought against it by a city:

A. [A] court shall award fees and other
expenses to any party . . . which prevails by an
adjudication on the merits in any of the following:

1. A civil action brought by the state or a
city, town or county against the party.

A.R.S. § 12-348(A)(1). Subsection (H) of the statute, however,

exempts from the fees provision “proceedings brought by a city,

town or county on collection of taxes or pursuant to traffic

ordinances or to criminal proceedings brought by a city, town or

county on ordinances which contain a criminal penalty or fine.”

Id. § 12-348(H)(8).

¶5 Tucson City Code § 16-32(e) provides that “[a]n unruly

gathering . . . constitutes a civil infraction.” Thus, whether

Defendants may recover fees turns on whether the civil

- 3 -

infraction proceeding in this case was a “civil action” for

purposes of A.R.S. § 12-348(A)(1) and, if so, whether any

provision of A.R.S § 12-348(H)(8) exempts the City from having

to pay fees. We review these matters of statutory

interpretation de novo. N. Valley Emergency Specialists, L.L.C.

v. Santana, 208 Ariz. 301, 303, ¶ 8, 93 P.3d 501, 503 (2004).

A. Meaning of “Civil Action”

¶6 To qualify for an award of fees, a party must

“prevail” in a “civil action” brought by a city. Tucson

concedes that Defendants prevailed in an action commenced by the

City. It maintains, however, that a civil infraction proceeding

is not a civil action for purposes of A.R.S. § 12-348.

¶7 When interpreting any statute, we look to its language

as “the best and most reliable index of [the] statute’s

meaning.” N. Valley, 208 Ariz. at 303, ¶ 9, 93 P.3d at 503

(quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133

(1993)). We give words their ordinary meaning unless the

legislature clearly intended a different meaning. Mail Boxes,

etc., U.S.A. v. Indus. Comm’n, 181 Ariz. 119, 121, 888 P.2d 777,

779 (1995).

¶8 A “civil action” is commonly understood to be any

action that is not a criminal prosecution. See BLACK’S LAW

DICTIONARY 32 (8th ed. 2004); see also State v. Wise, 137 Ariz.

468, 470 n.3, 671 P.2d 909, 911 n.3 (1983) (approving reference

- 4 -

to dictionary to determine ordinary meaning). Ordinance

violations are classified by the Tucson City Code as “civil”

infractions rather than criminal misdemeanors. See TCC § 16-

32(e). Procedure in civil infraction cases is, moreover,

governed by the Tucson Local Rules of Practice and Procedure in

City Court Civil Proceedings, see TCC § 8-8, and appeals from

civil infraction proceedings are governed by the Superior Court

Rules of Procedure – Civil, see TCC § 16-51. The City’s choice

to classify the violations as civil infractions and to apply

rules for civil proceedings suggests that civil infraction

proceedings are not criminal actions, but rather are “civil

actions.”

¶9 The City nonetheless urges us to ignore the usual

meaning of the term civil action and instead to narrowly

construe it to exclude civil infraction proceedings. The City

contends that civil actions include only those proceedings

governed by the Arizona Rules of Civil Procedure or proceedings

held in justice court. We disagree. While application of the

Rules of Civil Procedure provides compelling evidence that a

proceeding is a civil action, it does not follow that only those

proceedings governed by the Rules of Civil Procedure qualify as

civil actions. Indeed, several examples suggest that the

opposite is true. For example, in family court proceedings the

Rules of Civil Procedure do not apply, see Ariz. R. Fam. L.P.

- 5 -

2(A), yet the mere inapplicability of those rules does not turn

family court proceedings into criminal or quasi-criminal

actions. Traffic and juvenile cases similarly are not conducted

pursuant to the Arizona Rules of Civil Procedure, yet they are

classified as civil proceedings as well. See Ariz. R.P. Civ.

Traf. Viol. Cases 1; Ariz. R.P. Juv. Ct. 1(A).

¶10 Defendants’ position that civil infraction proceedings

constitute civil actions also finds support in statute. The

legislature has allowed civil infraction proceedings to be

conducted as civil actions:

The city or town may maintain a civil action in
the municipal court for the recovery of a penalty or
forfeiture provided for the violation of an ordinance.
The action shall be brought and conducted as civil
actions in justice of the peace courts.

A.R.S. § 22-406 (2002). The city court hearing in which

Defendants prevailed was an action authorized by A.R.S. § 22-

406. The use of the phrase “civil action” in § 22-406 to

describe the conduct of civil infraction proceedings indicates

that such proceedings are civil actions for purposes of § 12-

348(A)(1). See Wash. Nat’l Ins. Co. v. Employment Sec. Comm’n,

61 Ariz. 112, 119, 144 P.2d 688, 691-92 (1944) (noting “that

legislative construction in one act of the meaning of certain

words is entitled to consideration in construing the same words

appearing in another act”).

¶11 The City counters that A.R.S. § 22-406 merely

- 6 -

authorizes civil actions to collect fines or penalties imposed

in prior ordinance violation proceedings and does not categorize

the underlying penalty-finding proceeding as a civil action.

Only the collection proceeding, the City argues, qualifies as a

“civil action.” The underlying civil infraction proceedings,

the City maintains, remain “civil offense proceedings” governed

by A.R.S. § 9-500.21 (Supp. 2006).

¶12 We are not persuaded. A civil action “for the

recovery of a penalty” is a term of art referring to the

enforcement of an ordinance in the first instance. See 9A

Eugene McQuillin, THE LAW OF MUNICIPAL CORPORATIONS § 27.05, at

292 (3d ed. rev. 1996) (“In this country there are two modes

ordinarily recognized for enforcing penal ordinances. One is an

action to recover the penalty, and the other is the ancient and

familiar summary proceeding on information or complaint.”); see

also 62 C.J.S. Municipal Corporations § 204(c) (1999)

(“[V]iolations of municipal ordinances or regulations may be

enforced by a civil action to recover a penalty . . . .”).

Thus, we conclude that A.R.S. § 22-406 authorizes actions to

enforce ordinances, not merely to recover penalties, through

civil infraction proceedings that are conducted as civil

actions.

¶13 We also do not agree with the City’s contention that

civil infraction proceedings are a separate type of case

- 7 -

authorized by A.R.S. § 9-500.21. That section requires a “city

or town that classifies ordinance violations as civil offenses

[to] establish procedures to hear and determine these

violations.” Id. The statute does not create a new type of

“civil offense” proceeding that is something other than a civil

action. It merely requires cities to establish procedures if

they choose to enforce their ordinances civilly under § 22-406.

¶14 The City’s argument that civil infraction proceedings

are not civil actions fails for yet another reason. The Tucson

City Charter provides that “[t]he violation . . . of any

ordinance of the city . . . may be prosecuted by the authorities

of the city . . . or may be redressed by civil action, at the

option of the mayor and council.” Tucson City Charter ch. 25,

§ 5. The Charter thus allows two options for enforcing

ordinances, one civil and one criminal. See id.; see also

A.R.S. § 9-240(B)(28)(c) (Supp. 2006). By choosing to use

summary civil proceedings rather than criminal prosecutions, the

City has avoided the higher standard of proof that applies in

criminal cases as well as other procedural restrictions.

Compare TCC § 8-8 (“The rules of criminal procedure of the state

shall apply to all criminal proceedings in city court.”), with

Tucson Local R. Practice & P. in City Ct. Civ. Proceedings 11

(preponderance of the evidence standard of proof applies in

civil cases). It has, on the other hand, subjected itself to

- 8 -

payment of fees in those cases in which it cannot meet the lower

civil standard of proof. The City cannot take the benefit of

its choice to pursue ordinance violations as civil actions

without also bearing the burden of that choice.

¶15 Finally, the City argues that allowing an award of

fees is incompatible with the summary nature of civil infraction

proceedings. Because the summary nature of civil infraction

proceedings does not affect the disparity in resources between

cities and parties, however, we are not persuaded.

¶16 When interpreting statutes, we also strive to “give

effect to legislative intent.” Mail Boxes, etc., 181 Ariz. at

121, 888 P.2d at 779. While legislative intent may sometimes be

difficult to ascertain, in this case, when the legislature

enacted § 12-348 in 1981, it stated its intent to protect

citizens from the high cost of defending against unreasonable

governmental actions. 1981 Ariz. Sess. Laws, ch. 208, § 1. The

legislature chose to mitigate that burden by allowing awards of

reasonable fees to those who prevail against governmental

entities. Id. The legislature explained:

A. The legislature finds that certain individuals
. . . may be deterred from seeking review of or
defending against unreasonable governmental action
because of the expense involved in securing the
vindication of their rights. The economic deterrents
to contesting governmental action are magnified in
these cases by the disparity between the resources and
expertise of these individuals and their government.

- 9 -

B. The purpose of this section is to reduce the
deterrents and the disparity by entitling prevailing
parties to recover an award of reasonable attorney
fees, expert witness fees and other costs against the
state.

Id. This remedial purpose supports our broad interpretation of

the phrase “civil action.”

¶17 The ordinary meaning of civil action, as well as the

use of that phrase in § 22-406 to describe civil infraction

proceedings, demonstrates that civil infraction proceedings are

civil actions for purposes of A.R.S. § 12-348(A)(1). The

expressed legislative purpose of the statute also confirms that

parties that prevail in civil infraction proceedings may recover

fees and costs.

B. Exceptions to Attorneys’ Fees Provision

¶18 Having determined that the proceeding in this case was

a civil action for purposes of A.R.S. § 12-348(A)(1), we turn to

whether subsection (H) of that statute excepts civil infraction

proceedings from the fees provision. Because the City has

conceded that the civil infraction proceedings at issue are not

criminal proceedings, the only exception that could apply is the

one for proceedings arising from “traffic ordinance” violations.

The City argues that the legislature intended to exempt civil

infraction proceedings when it listed traffic ordinance

proceedings, because the two proceedings are similar in nature.

We do not agree.

- 10 -

¶19 The fees statute “mandate[s] awards to all parties

prevailing against the state [or city], absent an affirmative

statutory prohibition.” Estate of Walton v. State, 164 Ariz.

498, 501, 794 P.2d 131, 134 (1990) (emphasis added); see also

Cortaro Water Users’ Ass’n v. Steiner, 148 Ariz. 314, 317, 714

P.2d 807, 810 (1986). Thus, the legislature must specifically

list a class of proceedings in subsection (H) for those

proceedings to be exempted from the fees provision.

¶20 The legislature has not specifically listed civil

infraction proceedings in § 12-348(H), demonstrating that it

intended the fees provision to apply to those proceedings. See

Powers v. Carpenter, 203 Ariz. 116, 118, ¶ 10, 51 P.3d 338, 340

(2002) (explaining that when a statute expressly lists certain

items, we presume that the legislature intended to exclude

similar items that are not listed). The legislature knows how

to exempt proceedings when it wishes to do so, see A.R.S. § 12-

348(H)(1)-(8) (listing several types of proceedings), and it has

not chosen to exempt civil infraction proceedings. The

legislature may, of course, amend § 12-348(H) if it determines

that civil infraction proceedings should be exempted. Absent

such a legislative exemption, however, we cannot judicially

create one.

C. Attorneys’ Fees on Appeal

¶21 In their supplemental brief, Defendants requested fees

- 11 -

incurred in responding to the City’s petition to this Court.

When a party requests fees, it not only must state the statutory

or contractual basis for the award, but also must make the

request in a timely manner. Rule 21(c)(1) of the Arizona Rules

of Civil Appellate Procedure requires that “a request for

allowance of attorneys’ fees shall be made in the petition or

cross-petition for review or response thereto.” In this case,

Defendants failed to request fees in their response to the

City’s petition for review. We thus deny the request as

untimely. See Powell v. Washburn, 211 Ariz. 553, 560, ¶ 29, 125

P.3d 373, 380 (2006).

III. CONCLUSION

¶22 We hold that civil infraction proceedings are civil

actions for purposes of the attorneys’ fees provision in A.R.S.

§ 12-348(A)(1), and nothing in A.R.S. § 12-348(H)(8) provides an

exception for such proceedings from the application of the fees

provision. We therefore affirm the judgment of the court of

appeals that Defendants are entitled to an award of attorneys’

fees, reverse the contrary judgments of the superior court and

city court, and remand the case for proceedings consistent with

this opinion.

_______________________________________
Rebecca White Berch, Vice Chief Justice

- 12 -

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

- 13 -